SE (Deportation – Malta – 2002 – General Risk)
| Jurisdiction | England & Wales |
| Judge | DR H H STOREY,VICE PRESIDENT |
| Judgment Date | 29 October 2004 |
| Neutral Citation | [2004] UKIAT 295 |
| Court | Immigration Appeals Tribunal |
| Date | 29 October 2004 |
[2004] UKIAT 295
IMMIGRATION APPEAL TRIBUNAL
Dr H H Storey (Vice President)
Mr A Jordan (Vice President)
Mr D C Walker
Mr P J Linstead of Counsel, instructed by Afrifa & Partners, Solicitors for the appellant;
Mr G Saunders, Home Office Presenting Officer for the respondent
SE (Deportation — Malta — 2002 — General Risk) Eritrea
The appellant is a national of Eritrea. She appeals against a determination of Adjudicator, Mr J F Pullig, dismissing her appeal against a decision giving directions for removal following refusal to grant asylum.
The grounds of appeal to the Tribunal sought to argue that the Adjudicator was wrong to reject the appellant's account of being at risk by virtue of her fiancé's political activities. At the outset of the appeal, we accepted an application to amend the grounds of appeal so as to put in issue the additional matter of whether, in the light of the country guideline case of MA Eritrea CG [2004] UKIAT 00098 heard on 11 April 2004 by a Tribunal chaired by the President, Ouseley J, the appellant was entitled to succeed on the basis that on return she would be classified as a female draft evader.
We are not persuaded that the Adjudicator was wrong to find the appellant's account of most matters not credible. It was entirely open to him on the evidence to find inconsistent her account that on the one hand she knew nothing about the identities of people who attended the meeting, yet on the other hand that she knew they were of mixed ethnicity and so were anti-government.
The Adjudicator was entitled to find it implausible, if the police had discovered documents at her home, that she would not have been asked questions about them, particularly if she had been suspected of collaborating with her fiancé. The Adjudicator took careful note of the appellant's attempts to explain these matters, saying in respect of the first that she knew of the documents but not the details they concerned and, in respect of the other, that she did not know yet it was possible they had enough evidence to bring her to a court of law. The claim that she knew the documents were anti-government was not consistent with her account at interview where she stated she knew nothing: see question 11. The possibility that the police did not question her because they had enough evidence already was correctly considered remote.
We acknowledge that, taken in isolation, there is a sentence at paragraph 39 of the determination which appeared to accept that the appellant was arrested. However, when read in context, it is clear that the Adjudicator was doing no more than considering aspects of her claim in respect of the documents on the hypothetical assumption of an arrest.
We see nothing in the argument that the Adjudicator failed to assess the appellant's story in the context of the evidence as a whole. The Adjudicator made detailed reference to a number of background sources, including the CIPU Report, the Amnesty International Report and the Human Rights Watch Report. It may be that these showed that those suspected of dissident activity during the relevant period did face arrests and detentions. However, the appellant's account failed to show that she was ever suspected of dissident activity either on her own account or through connection with a dissident fiancé.
The Adjudicator plainly considered the appellant's claim that her and her fiancé's bank account had been frozen. Once again, it may well be the freezing of bank accounts is a measure used by the authorities against dissidents, especially those seen as Ethiopian or part-Ethiopian. However, this background evidence was not enough to overcome the appellant's failure to show that any part of her story, including that about her and her fiancé's bank accounts being frozen, was credible.
It is correct that the Adjudicator did not make specific findings on all aspects of the appellant's claimed adverse experiences in Eritrea. However, it was sufficiently clear, in the light of the findings he did make clear that he did not find her credible in any event.
Given the Adjudicator's primary findings of fact (which we have found to be sustainable) it was not necessary for him to address the issue of whether she would face prosecution by the authorities and whether such prosecution would be persecutory.
This leaves as the only outstanding grounds of appeal (1) whether the appellant would be at risk as a female draft evader and (2) whether she would be at risk as a mere returnee.
Mr Linstead on behalf of the appellant submitted that in the light of the country guideline decision, MA Eritrea CG [2004] UKIAT 00098, the appellant was entitled to succeed in her appeal on both grounds.
The facts in MA were that the appellant claimed to have left Eritrea having been required, as a sixteen year old, to report for her compulsory military training. The Adjudicator rejected her claim that she had received her call-up papers when she was sixteen but she said that the appellant was now over eighteen and on her return to Eritrea would be required to complete her military training. She found that the appellant would be seen either as a draft evader or as someone required to do military service. The Tribunal accepted that the Adjudicator put the appellant into one or other of the two categories, and that it may not have been possible to know into which category the Eritrean authorities would put her. It was, however, necessary for the Adjudicator to examine both of the possibilities. The Adjudicator did not do so and the Tribunal went on to consider the appeal on the basis that the appellant was a draft evader as found by the Adjudicator. There was no cross-appeal by the Secretary of State against the Adjudicator's finding that the appellant was a draft evader, although she had rejected her claim to have received call-up papers. The Tribunal then went on to consider the treatment that draft evaders were likely to face.
Dealing first with the female draft evader issue, Mr Saunders disputed this on two footings. Firstly, there was no evidential...
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